Ware v. Minot

202 Mass. 512 | Mass. | 1909

Rugg, J.

Ellen M. Ware by her holographic will gave certain real estate in trust, one pecuniary bequest, and to her son Richard her household furniture and other personal effects, and then proceeded as follows :

“ All the rest, residue and remainder of my property of every description whatever, real, personal and mixed, of whatever the same may consist, wherever the same may be situated, and whenever the same may have been acquired, whether before, or. after the execution of this will, I bequeath to my said son, Richard

“ If the said Richard shall not survive me, or if he shall die leaving no will duly executed by him, or if he shall die leaving no lineal descendants, then in that case it is my wish, and I so direct, that it, the property above mentioned, shall at my son’s death pass in equal shares to my nieces, daughters of my late sister, Emily H. Pierce and to the lawful, living children of either of them who shall then be dead, if any, such last named to take the share which would have gone to their mother had she continued to live.”

This residuary clause disposed of both real and personal estate, but we are asked now to determine only the nature of the estate taken by Richard Ware in land in Boston.

The rule for the construction of wills followed by courts in recent times is to ascertain the intent of the testator from the whole instrument, attributing due weight to all its language, and then give effect to that intent unless prevented by some positive rule of law, rather than to try to make the interpretation of particular words or phrases in one instrument square with that before given to somewhat similar words used by some one else under other surroundings to accomplish a more or less different end. McCurdy v. McCallum, 186 Mass. 464. A few combinations of words have become so fixed in their meaning by long and unvarying use as to be rules of property. But ordinary canons for the interpretation of wills, having been established only as aids for determining testamentary intent, are to be followed only so far as they accomplish that purpose, and not when the result would be to defeat it. Crapo v. Price, 190 Mass. 317, 319. Jewett v. Jewett, 200 Mass. 310, 317. It is permissible also to look at all the material circumstances in the light of which the will was executed in order to comprehend the sense and purpose of the language employed.

The present testatrix was the mother of the petitioner, who was her only prospective heir. The latter, at the time of the execution of the will, was past forty years of age, and had never married. It was in her mind that the son might predecease her, that, surviving her, he might also die intestate, and that, although it was possible that he might leave lineal descendants, he had reached middle age without having married, and might never do so. Being legally untrained, she attempted to express her thoughts on paper. She gave the residue to the son and devised it in the event of the son dying before her. Then by plain inference she gave him the power, if he survived her, to dispose of it by will, and by clear intendment also she provided that his lineal descendants should take it, if he failed to exercise the power. She expressed these last two alternative dispositions by the same form of subjunctive construction. But the meaning is the same as if she had expressly conferred the power, or made a devise to his offspring in the event of his intestacy.

If she had intended to give the son a fee, it was idle to confer upon him a power to appoint by will. The express gift of this power by implication, excludes the right to convey or dispose in any other way. Kent v. Morrison, 153 Mass. 137. The devise over to lineal descendants is strong evidence that she did not intend the estate of the son to possess the incident of descent to his heirs, and that therefore it was not a fee. Baker v. Thompson, 162 Mass. 40. The language of the gift to the son contains no technical words of inheritance, so that the estate given him is a question of construction. Dorr v. Johnson, 170 Mass. 540. There are no words like “ rest ” or “ remaining estate ” sometimes indicative of a fee or an absolute power of disposal (Kelley v. Meins, 135 Mass. 231, 233), for the gift over is of “ it, the property above mentioned,” which means the entire residue and is language apt to create a technical remainder. Although the clause is not grammatically or logically perfect, its meaning is not hard to discover. The testatrix intended the property, in the event that the son did not survive her, to go to the nieces, but if he survived her she intended it to go to him, not with the right to convey it away during his life, but with power to dispose of it by will, a power which could operate on 'the property only after his decease ; and she further intended that, if he did not make a will, it should go not to his heirs generally but to his lineal descendants surviving him, and finally that, in default of a will and such descendants, it should go to her nieces. The language expressive of this intent can in no part be brushed aside nor overridden without doing violence to the designs of the testatrix as written by her. There is in the will no word or phrase, which of itself, by force of some positive rule of law, regardless of other language, creates a particular kind of estate in any of the donees. Therefore the numerous cases, of which Bassett v. Nickerson, 184 Mass. 169, 173, and Galligan v. McDonald, 200 Mass. 299, are illustrations, are not in point. Although the devise to the son is not technically phrased to create a life estate, it appears from what follows in the will that this is all that was intended. Hence R. L. c. 135, § 22, is not applicable. The legal consequence of the language employed, giving all of it due effect, is a life estate to the son, with remainder to such persons as he by will may appoint, or, in default of such appointment, to his lineal descendants (R. L. c. 134, § 5; c. 154, §§ 7, 8), or if there are no descendants living at his death, then to her nieces.

By emphasizing some parts of the will to the exclusion of others, or by putting one part of the testators intent above another, a different conclusion might be reached. But we have no right to do that. All the words of the will are satisfied and given some weight only by holding that the son took an estate for his life with power of appointment and remainders over in default thereof, as have been stated. The decree of the Probate Court is reversed, and a decree is to be entered in accordance with this decision.

So ordered.